Should Minor Offenders Be Subject To Strip Searches?

On Wednesday, the Supreme Court hears arguments for a case testing whether prison guards may constitutionally strip search even minor traffic offenders when they are arrested and taken to jail.

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Originally published on October 12, 2011 4:14 pm

The U.S. Supreme Court hears arguments Wednesday in a case testing whether prison guards may constitutionally strip-search even minor traffic offenders when they are arrested and taken to jail.

For decades, most courts did not allow such blanket strip searches, but in recent years, the pendulum has swung the other way.

Wednesday's test case began on a New Jersey highway in March 2005. Albert Florence, his wife and his little boy were in a celebratory mood as they motored their way to the home of Albert's parents. The couple had just bought a new house and had been looking at new furniture at the design center. April was at the wheel, and Albert noticed that their BMW was being followed by a state trooper. April assured her husband that she wasn't speeding, but the trooper soon signaled them to pull over. After checking April's license, the trooper asked who owned the car, and upon learning that her husband, sitting next to her, was the owner, the trooper ordered Albert out of the car, handcuffed him and arrested him on an outstanding warrant for failure to pay a fine.

Albert Florence, a finance director at a car dealership, had no criminal record. He had just one brush with the law, years earlier, stemming from his leaving the scene of a traffic stop. He had been fined $1,500, and when he fell behind in his payments, a judge issued a warrant for his arrest, prompting Florence to pay the amount due in full.

The problem was that the warrant had never been purged from the computer system.

Florence, however, could prove he had paid the fine. He kept the document showing he had paid in his car, and he showed the paperwork, complete with a state seal, to the state trooper. The officer apologized but said he still had to arrest him.

The Constitution requires a suspect to be promptly arraigned and, in most cases, released, on bond if necessary. However, in Florence's case, despite the best efforts of his wife, he did not get a hearing and remained in jail for a full week.

At the Burlington Country jail where he was first taken, he was told to shower and was inspected by a guard.

The guard "was at about arm's distance," Florence recalls, "and he instructed me to turn around, squat, cough, lift up my genitals, and then put on the orange jumpsuit."

Florence says he pleaded with jail authorities to check with Essex County, where the warrant originated, and he kept waiting for his hearing. But it didn't happen. Meanwhile, his anxiety was growing. By the fourth day, he says, he was "pretty messed up" and scared about not being there for his wife, who was seven months pregnant with a condition that put her at risk of a premature birth.

After five days, he was transferred to Essex County, where he expected that everything would be straightened out.

Instead, Florence found "the same hell all over again."

He was not only strip-searched, but unlike in Burlington County, where he was by himself, Florence was now mixed in with other criminals.

"I'm with a whole bunch of murderers and carjackers and rapists and all walks of life that I wouldn't wish upon anybody, " Florence says.

Finally, a week after his arrest, and after his wife got a lawyer, he was released. He sued both counties for failing to give him a hearing and for what he contends were illegal strip searches. The failure to provide a prompt hearing is still pending before the lower courts. The strip search is before the Supreme Court on Wednesday.

Florence contends that strip-searching a person who is arrested for "a noncriminal offense" violates the Constitution's ban on unreasonable searches.

His lawyer, Susan Chana Lask, notes that Florence was not arrested for a knife fight or a drug violation.

"He was pulled off the street for a traffic stop," Lask says. "There was no reason to strip-search Albert Florence unless they thought he was carrying contraband, but they never made that case."

Indeed, the state of New Jersey has a policy against strip searches without suspicion. And Lask, in her brief, calls the number of trivial offenses for which individuals are regularly arrested and would be subject to indiscriminate strip searches "astonishing." Such jailable offenses include car equipment violations, such as driving with a noisy muffler, parking violations, even riding a bike without a bell. In Washington, D.C., a woman arrested for eating a sandwich on the subway was strip-searched in front of male guards.

The New Jersey counties where Florence was imprisoned, however, have an entirely different perspective. Representing them, lawyer Carter Phillips will tell the Supreme Court that cases like Florence's are both rare and better than the alternative. Phillips notes that Essex County includes Newark, where thousands of prisoners are processed. To protect prisoners and guards alike, he argues, "it is simply the safer approach to say, if for whatever reason the system has seen fit to put you in a jail ... you have to go through the strip-search process."

The U.S. Supreme Court in 1979 ruled that prison officials may, in the name of security, conduct strip searches of prisoners who have planned contact visits with outsiders. The court said such searches are reasonable in order to prevent weapons, drugs and other contraband from being brought into the prison. Until quite recently, however, the lower courts have not permitted automatic jail-admission strip searches for those charged with minor offenses and not yet convicted. In the past decade, that trend has started to reverse. And now that question is squarely before the Supreme Court.

Today, the U.S. Supreme Court hears arguments over how far police can go in searching you. The question is whether people arrested for minor offenses can be strip-searched no matter the circumstances. In recent years, courts have become more willing to approve those kinds of searches. Now comes a case that began on a New Jersey highway in March of 2005. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: Albert Florence, his wife and little boy, were in a celebratory mood as they motored their way to his parents' home. Florence, the finance director for a car dealership, and his wife April, had just bought a new house.

She was driving when he noticed that their BMW was being followed by a state trooper. Mrs. Florence assured her husband she wasn't speeding, but the officer signaled them to pull over. After checking her license, the trooper asked who owned the car, and upon learning that her husband, sitting next to her, was the owner, the trooper ordered Mr. Florence out of the car.

ALBERT FLORENCE: I followed his directions, you know, to a T. You know, I wasn't loud. I wasn't boisterous.

TOTENBERG: But the officer told him there was an outstanding warrant for his arrest and handcuffed him. Florence had no criminal record. His only brush with the law had been years earlier when he, by his own account, stupidly left the scene of a traffic stop and was fined $1,500.

He was in his 20s back then and had fallen behind in his payments, prompting a judge to issue a bench warrant for his arrest. Florence immediately paid up in full, and thereafter kept the record of his paid fine in his car. It didn't do him any good, because the arrest warrant apparently was never purged from the state's computers. And on that day in 2005, when he showed the paperwork to the state trooper, the officer apologized but said he still had to arrest him.

Now, as most TV watchers know, the Constitution requires a suspect to be promptly arraigned and in most cases released, on bond if necessary. However, in Albert Florence's case, despite the best efforts of his wife, he didn't get a hearing and remained in jail for a full week.

At the Burlington County jail in New Jersey where he was first taken, he was told to shower and then inspected by a guard.

FLORENCE: He was about at arm's distance, and he instructed me to turn around, squat, cough, lift up my genitals, and then put on the orange jumpsuit.

TOTENBERG: Florence says he pleaded with jail authorities to check with Essex County, where the warrant originated, and he kept waiting for his hearing, but it didn't happen. Meanwhile, his anxiety was growing. His first child had been born prematurely, and his wife, seven months pregnant, was at risk for another premature birth. By day four in jail, Florence was, in his words, pretty messed up.

FLORENCE: I felt helpless.

TOTENBERG: After five days, he was transferred to Essex County, where he expected everything would be straightened out.

FLORENCE: But, it was the same hell over again.

TOTENBERG: This time he was not only strip-searched, but unlike in Burlington Country, where he was by himself.

FLORENCE: I'm with a whole bunch of murderers and carjackers and rapists, and like all kinds of walks of life that I wouldn't wish upon anybody.

TOTENBERG: Finally, a day later, after his wife got a lawyer, he was released. He sued both counties for failing to give him a hearing and for what he contends were illegal strip searches. The failure to provide a prompt hearing is an issue still pending before the lower courts. The strip search is before the Supreme Court today. Florence contends that strip-searching a person who is arrested for what his lawyer calls a non-criminal offense violates the Constitution's ban on unreasonable searches.

His lawyer, Susan Chana Lask, notes that Florence was not arrested for a knife fight or a drug violation.

SUSAN CHANA LASK: He was pulled off the street for a traffic stop. There was no reason to strip-search Albert Florence unless they thought he was carrying contraband, and they never made that case.

TOTENBERG: Indeed, the state of New Jersey has a policy against suspicionless strip searches. And Lask, in her brief, calls astonishing, the number of trivial offenses for which individuals are regularly arrested and would be subject to indiscriminate strip searches. Such jailable offenses include car equipment violations, such as driving with a noisy muffler; parking violations; even riding a bike without a bell.

The New Jersey counties, however, have an entirely different perspective. Representing them, lawyer Carter Phillips will tell the Supreme Court today that cases like Florence's are both rare and better than the alternative. Phillips notes that Essex Country, for instance, includes Newark, where thousands of prisoners are processed, and he contends that routine strip-searches of everyone protects prisoners and guards alike.

CARTER PHILLIPS: It is simply the safer approach to say, if for whatever reason the system has seen fit to put you into a jail and to admit you for some period of time, that you have to, then, go through the strip-search process.

TOTENBERG: The U.S. Supreme Court in 1979 ruled that prison officials may, in the name of security, conduct strip-searches of prisoners who have planned contact visits with outsiders. The court said such searches are reasonable in order to prevent weapons, drugs, and other contraband from being brought into the prison.

Until quite recently, however, the lower courts have not permitted automatic strip-searches prior to conviction for those charged with minor offenses. In the last decade that trend has started to reverse. And now that question is squarely before the Supreme Court. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.